Citation Nr: 18128200 Decision Date: 08/21/18 Archive Date: 08/21/18 DOCKET NO. 11-05 860 DATE: August 21, 2018 ORDER Prior to March 16, 2018, a rating in excess of 20 percent for lumbar degenerative disc disease with intervertebral disc syndrome (IVDS) is denied. Beginning March 16, 2018, a rating in excess of 40 percent for lumbar degenerative disc disease with IVDS is denied. A rating in excess of 10 percent for osteoarthritis of the right knee is denied. A rating in excess of 10 percent for a left ankle strain is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 16, 2018, the Veteran’s service-connected lumbar degenerative disc disease with IVDS was manifested by, at worst, forward flexion to 40 degrees, with no evidence of ankylosis, no incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities other than the Veteran’s separately rated lower extremity radiculopathy. 2. Beginning March 16, 2018, the Veteran’s service-connected lumbar degenerative disc disease with IVDS has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician, or objective evidence of neurologic abnormalities other than the Veteran’s service-connected lower extremity radiculopathy. 3. Throughout the appeal period, the Veteran’s service-connected osteoarthritis of the right knee has been manifested by pain, and at worst, 90 degrees of flexion and 10 degrees of extension, with no evidence of instability. 4. Throughout the appeal period, the Veteran’s service-connected left ankle strain has been manifested by no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. Prior to March 16, 2018, the criteria for a rating in excess of 20 percent for lumbar degenerative disc disease with IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). 2. From March 16, 2018, the criteria for a rating in excess of 40 percent for lumbar degenerative disc disease with IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for a rating in excess of 10 percent for osteoarthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). 4. The criteria for a rating in excess of 10 percent for a left ankle strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in August 2015 and October 2016 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. The Board notes that in a May 2018 rating decision, service connection was granted for bilateral lower extremity radiculopathy. To date, the Veteran has not appealed the ratings or effective dates assigned to his service-connected radiculopathy. Therefore, those issues are not currently before the Board. See 38 C.F.R. § 20.200, 20.302 (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Low Back The Veteran’s service-connected lumbar degenerative disc disease with IVDS has been assigned a 20 percent rating prior to March 16, 2018, and a 40 percent rating thereafter. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastro-intestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1). Alternatively, IVDS can be rated based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula) or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. at Note (6). Pursuant to the IVDS Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Id. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Upon review of the record, the Board finds that a rating in excess of 20 percent is not warranted at any point prior to March 16, 2018. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of pain, stiffness, and numbness, which affect his ability to sit, stand, walk, lift, twist, and bend. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine has not been shown prior to March 16, 2018, such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Range of motion testing performed during a December 2014 VA examination revealed full flexion of the thoracolumbar spine. At worst, forward flexion of the thoraco-lumbar spine was to 40 degrees during a November 2008 VA examination, with no additional limitation due to pain, fatigue, weakness, lack of endurance, incoordination, or after repetitive use. Furthermore, there was no evidence of ankylosis. Accordingly, a rating in excess of 20 percent is not warranted at any point prior to March 16, 2018. Additionally, the Board finds that a higher rating is not warranted under the IVDS formula prior to March 16, 2018. In order for a higher rating to be warranted under the IVDS formula, the evidence of record must demonstrate incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. In an August 2009 written statement, the Veteran’s daughter indicated that the Veteran was sometimes unable to get out of bed due to his back pain, and the Veteran testified during the June 2015 Board hearing that he was incapacitated about 12 days during the past six months due to back pain. However, a review of the Veteran’s treatment records and VA examination reports reveals no evidence of incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Upon review of the record, the Board finds that a rating in excess of 40 percent is not warranted at any point on or after March 16, 2018. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of pain, stiffness, and numbness, which affect his ability to sit, stand, walk, lift, twist, and bend. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, unfavorable ankylosis of the entire thoracolumbar spine has not been shown such that a higher rating would be warranted. See Thompson, 815 F.3d at 786. A VA examination conducted in March 2018 revealed no evidence of ankylosis. Accordingly, a rating in excess of 40 percent is not warranted at any point on or after March 16, 2018. Additionally, the Board finds that a higher rating is not warranted under the IVDS formula at any point on or after March 16, 2018. In order for a higher rating to be warranted under the IVDS Formula on or after March 16, 2018, the evidence of record must demonstrate incapacitating episodes having a total duration of at least six weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. As noted above, the record does not show incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician at any point during the appeal period. Accordingly, a higher rating is not warranted under the IVDS formula on or after March 16, 2018. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The Board has also considered whether a separate rating is warranted for any other associated neurological disorder. However, the Veteran’s bilateral lower extremity radiculopathy is already separately rated, and the evidence of record shows no other sensory or motor deficits or any other neurologic abnormalities found on neurological testing. Thus, a separate rating for a neurological disability is not warranted. 2. Right Knee Throughout the appeal period, the Veteran’s service-connected osteoarthritis of the right knee has been assigned a 10 percent rating based on evidence of painful motion. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 (flexion) and 5261 (extension). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted at any point during the period under review. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of knee pain, weakness, stiffness, and swelling, which limits his ability to stand and walk for prolonged periods of time. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, neither flexion limited to 30 degrees, nor extension limited to 15 degrees, has been shown such that a higher rating would be warranted under either Diagnostic Code 5260 or 5261. See Thompson, 815 F.3d at 786. Throughout the appeal period, the Veteran’s right knee exhibited, at worst, 90 degrees of flexion and 10 degrees of extension, with no additional limitation due to pain, fatigue, weakness, lack of endurance, incoordination, or after repetitive use. Thus, a rating in excess of 10 percent for limitation of motion is not warranted at any point during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Moreover, as the Veteran has not had compensable limitation of flexion under Diagnostic Code 5260, separate ratings for flexion and extension limitation is not warranted. The Board has also considered whether a separate rating is warranted for instability. During the June 2015 Board hearing, the Veteran testified that his right knee has given out on him about eight or nine times during the past six months. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. The VA examiners who evaluated the Veteran in November 2008, December 2014, and March 2018 found no evidence of instability or subluxation, and anterior, posterior, medial, and lateral stability tests were all within normal limits. Accordingly, the Board finds that a separate rating for instability is not warranted at any point during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. Left Ankle The Veteran’s service-connected left ankle strain has been assigned a 10 percent rating pursuant to the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5271, 10 percent rating is warranted for moderate limitation of motion of the ankle, and a maximum 20 percent rating is warranted for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. 4.6 (2017). The Rating Schedule provides guidance by defining full range of motion of the ankle as 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II (2017). Upon review of the record, the Board finds that a rating in excess of 10 percent for a left ankle strain is not warranted at any point during the period under review. The Board has reviewed and considered the Veteran’s assertions in support of his claim, including his reports of pain, weakness, stiffness, giving way, lack of endurance, and fatigability, which affect his ability to walk or stand for prolonged periods of time. However, the objective medical evidence of record is of greater probative value as to the Veteran’s level of impairment than his assertions. Range of motion testing performed during November 2008 and December 2014 VA examinations revealed no evidence of any limitation of motion or objective evidence of painful motion. Range of motion testing performed during a March 2018 VA examination revealed full range of dorsiflexion and 35 degrees of plantar flexion, even after consideration of pain and other symptoms described in DeLuca. As the Veteran’s left ankle exhibited, at worst, no limitation of dorsiflexion and only 10 degrees shy of full plantar flexion, the Board finds that the evidence of record reflects no more than moderate limitation of motion. Therefore, a rating in excess of 10 percent is not warranted at any point during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. In reaching the above conclusions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. REASONS FOR REMAND 1. The issue of entitlement to TDIU is remanded. The Board finds that a remand is necessary in order to obtain complete information regarding the Veteran’s employment history. On his September 2007 and November 2008 applications for TDIU, the Veteran indicated that he last worked as an order puller for Miller Curtain in January 2006. However, at one point during the June 2015 Board hearing, the Veteran testified that he most recently worked at Morse Electric, which was not included among his work history on his TDIU applications. Thereafter, during his March 2018 VA examinations, the Veteran reported having an office job. Accordingly, the Veteran should be asked to provide the names of all employers and dates of employment after November 2008, to specifically include Morse Electric and the office job referenced during the March 2018 VA examinations. The matter is REMANDED for the following action: Ask the Veteran to fully complete a new VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to include the names and addresses of all employers for whom he worked after November 2008, to specifically include Morse Electric and the office job reference during the March 2018 VA examinations, as well as his income from those employers. Upon receipt of such information, VA should request that each employer identified by the Veteran return a completed VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs